Thompson v. State Farm Mutual Automobile Insurance

468 N.W.2d 432, 161 Wis. 2d 450, 1991 Wisc. LEXIS 299
CourtWisconsin Supreme Court
DecidedMay 1, 1991
Docket90-0108
StatusPublished
Cited by20 cases

This text of 468 N.W.2d 432 (Thompson v. State Farm Mutual Automobile Insurance) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. State Farm Mutual Automobile Insurance, 468 N.W.2d 432, 161 Wis. 2d 450, 1991 Wisc. LEXIS 299 (Wis. 1991).

Opinions

DAY, J.

This case is before the court on certification from the court of appeals pursuant to sec. (rule) 809.61, Stats. 1987-88. State Farm Mutual Automobile Insurance Company (State Farm) appeals from a summary judgment entered by the circuit court of Barron county, the Honorable James C. Eaton, Judge, for damages in favor of Linda Thompson and against State Farm in the amount of $300,000 plus costs and disbursements.

This is an underinsured motorist case. The issue certified to us by the court of appeals was stated as: Does the accidental shooting of a passing motorist by a deer hunter seated on the bed of his pickup truck "arise out of" the "use" of the truck? The more complete statement of the issue is: Does the accidental shooting of a passing motorist by a disabled deer hunter sitting in the bed of his pickup truck and possessing a permit under sec. 29.09, Stats. 1987-881 authorizing him to "shoot or hunt from a stationary vehicle," "arise out of" the "use" of the truck? (Emphasis added.) The circuit court found that the accident arose out of the use of the motor vehicle, and that the accident was a risk within the reasonable contemplation of the parties to the insurance contract. The court therefore ruled that underinsured motorist coverage exists. We conclude that the accident arose out of the use of the underinsured motor vehicle, and we affirm the judgment of the circuit court.

[453]*453Among other things the parties stipulated to the following facts:

1. On November 25,1988 Lester E. Thompson died as a result of being struck by a bullet. On that date he was married to Linda Thompson, the plaintiff in this action. Lester and Linda Thompson have three minor children. Linda Thompson, as surviving spouse, is the appropriate plaintiff in this action.
2. On November 25, 1988 Lester E. Thompson had in effect three automobile insurance policies issued by State Farm Mutual Automobile Insurance Company, each on a vehicle owned by Lester E. Thompson. Each of these State Farm policies included underinsured motor vehicle coverage with limits of liability of $100,000 per person and $300,000 per accident.
3. Each of the three State Farm policies identified in paragraph 2 contains the following language:
We will pay damages for BODILY INJURY an INSURED is legally entitled to collect from the owner or driver of an UNDERINSURED MOTOR VEHICLE. The BODILY INJURY must be caused by accident arising out of the operation, maintenance or use of an UNDERINSURED MOTOR VEHICLE.
UNDERINSURED MOTOR VEHICLE — means a land motor vehicle:
1. the ownership, maintenance or use of which is insured or bonded for bodily injury liability at the time of the accident; and
2. whose limits of liability for bodily injury liability:
a. are less than the amount of the INSURED'S DAMAGES; or
[454]*454b. have been reduced by payments to PERSONS other than the INSURED to less than the amount of the INSURED'S DAMAGES.
4. The plaintiff, Linda Thompson, is an "insured" as that word is used in the policy language in paragraph 3.
5. The pickup truck owned by Mr. Yndestad is an "underinsured motor vehicle" as that term is used in the policy language contained in paragraph 3.
6. The plaintiff, Linda Thompson, is legally entitled to collect damages from Mr. Yndestad for the death of Lester E. Thompson. These damages are for "bodily injury" as that term is used in the policy language contained in paragraph 3.
7. The "bodily injury" was caused by the "accident" as that term is used in the policy language contained in paragraph 3.
8. This "bodily injury" did not arise out of the "operation" or "maintenance" of an underinsured motor vehicle as those terms are used in the policy language contained in paragraph 3.
9. On November 25, 1988, Mr. Yndestad was using a Remington Model 700 7MM Magnum bolt action rifle while deer hunting. He was handicapped and had a permit pursuant to sec. 29.09 Wis. Stats, to shoot or hunt from a stationary vehicle.
10. On November 25, 1988, Mr. Yndestad was the owner of a brown Dodge pickup truck. This truck was insured for bodily liability arising from the ownership, maintenance or use of the truck.
11. On November 25, 1988, Mr. Yndestad drove the pickup truck off the roadway to a point near a wooded area in an open field. He parked next to a stacked pile of wood and stumps. He turned off the [455]*455engine, left the cab and sat on the floor of the bed of the pickup truck.
12. After Mr. Yndestad had been sitting on the bed of the truck for a period of time, two deer came from the south across the open field in front of him. The deer were heading in a northerly direction toward the wooded area of the field to the west of Mr. Yndestad. He intentionally fired two shots at the deer with his rifle. He intended to hit one of the deer with each shot fired.
13. When Mr. Yndestad shot at the deer, he did so in the direction of Highway 48, which he could see from where he was sitting. He did not see any traffic on Highway 48 when he fired the shots. One of the shots missed the deer and traveled some 500 yards, passed [sic] the deer, to Highway 48 and struck Lester E. Thompson.
14. Mr. Yndestad was negligent for shooting his rifle in the direction of Highway 48 such that a bullet fired would cross the highway. This negligence was a cause of the bodily injury of Lester E. Thompson.
15. If this accident arises out of the use of an under-insured motor vehicle, as those words are used in State Farm's car policies, the plaintiff, Linda Thompson, is entitled to payment of the policy limits of the three policies for a total sum of $300,000.
16. The sole issue for resolution is whether the bodily injury to Lester E. Thompson was caused by an accident "arising out of the . . . use of an underin-sured motor vehicle.11

Since neither party claims that the terms of the insurance contract are ambiguous, and the facts are stipulated, we review the issue as a question of law. "Application of the terms of an insurance policy to established [456]*456facts is a question of law." Blackhawk Prod. v. Chicago Ins., 144 Wis. 2d 68, 77, 423 N.W.2d 521 (1989). See also Garriguenc v. Love, 67 Wis. 2d 130, 133, 226 N.W.2d 414 (1975); Elec. Power v. California Union Ins., 142 Wis. 2d 673, 677, 419 N.W.2d 255 (Ct. App. 1987). This court may decide questions of law independently, without deference to the trial court's decision. Lambert v. Wrensch, 135 Wis. 2d 105, 115, 399 N.W.2d 369 (1987).

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Thompson v. State Farm Mutual Automobile Insurance
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Bluebook (online)
468 N.W.2d 432, 161 Wis. 2d 450, 1991 Wisc. LEXIS 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-state-farm-mutual-automobile-insurance-wis-1991.